A-68650, FEBRUARY 27, 1936, 15 COMP. GEN. 740

A-68650: Feb 27, 1936

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THE RIGHT TO RENTALS ACCRUING THEREAFTER IS IN THE UNITED STATES NOTWITHSTANDING COMPLICATIONS REQUIRED THE SUBSEQUENT FILING OF A CONSENT DECREE. PAYMENTS ALLEGED TO HAVE BEEN MADE BY THE FORMER OWNER FOR TAXES ARISING AGAINST THE PROPERTY SUBSEQUENT TO THE DECLARATION DATE MAY NOT BE SET OFF BY SAID OWNER AGAINST RENTS COLLECTED BY IT SUBSEQUENT THERETO. 1936: THERE WAS RECEIVED YOUR LETTER OF JULY 15. AS FOLLOWS: REFERENCE IS MADE TO THE LAND ACQUIRED THROUGH CONDEMNATION PROCEEDINGS FOR A POST OFFICE SITE AT SWARTHMORE. THE DATE THE DECLARATION OF TAKING WAS FILED AND THE AMOUNT OF COMPENSATION DEPOSITED INTO THE REGISTRY OF THE COURT. THE COST OF THE PROPERTY TO THE GOVERNMENT WAS $14.

A-68650, FEBRUARY 27, 1936, 15 COMP. GEN. 740

REAL ESTATE - CONDEMNATION - RENT SUBSEQUENT TO DECLARATION OF TAKING TITLE TO PROPERTY INVOLVED HAVING PASSED TO THE GOVERNMENT ON THE FILING OF THE DECLARATION OF TAKING AND DEPOSIT OF COMPENSATION UNDER THE ACT OF FEBRUARY 26, 1931, 46 STAT. 1421, THE RIGHT TO RENTALS ACCRUING THEREAFTER IS IN THE UNITED STATES NOTWITHSTANDING COMPLICATIONS REQUIRED THE SUBSEQUENT FILING OF A CONSENT DECREE, NOTHING IN SAID DECREE HAVING DIVESTED THE GOVERNMENT OF TITLE, AND PAYMENTS ALLEGED TO HAVE BEEN MADE BY THE FORMER OWNER FOR TAXES ARISING AGAINST THE PROPERTY SUBSEQUENT TO THE DECLARATION DATE MAY NOT BE SET OFF BY SAID OWNER AGAINST RENTS COLLECTED BY IT SUBSEQUENT THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, FEBRUARY 27, 1936:

THERE WAS RECEIVED YOUR LETTER OF JULY 15, 1935, AS FOLLOWS:

REFERENCE IS MADE TO THE LAND ACQUIRED THROUGH CONDEMNATION PROCEEDINGS FOR A POST OFFICE SITE AT SWARTHMORE, PENNSYLVANIA.

TITLE TO THE AFORESAID LAND BECAME VESTED IN THE UNITED STATES NOVEMBER 5, 1934, THE DATE THE DECLARATION OF TAKING WAS FILED AND THE AMOUNT OF COMPENSATION DEPOSITED INTO THE REGISTRY OF THE COURT. THE COST OF THE PROPERTY TO THE GOVERNMENT WAS $14,000. THE SWARTHMORE NATIONAL BANK AND TRUST COMPANY WAS THE VENDOR.

THE BUILDINGS AND IMPROVEMENTS ON THE LAND ALSO BECAME THE PROPERTY OF THE GOVERNMENT. THE CUSTODIAN WAS DIRECTED TO SERVE NOTICE ON ALL TENANTS FOR THE VACATION OF THE PREMISES AND TO COLLECT RENTAL AT THE RATE PAID TO THE FORMER OWNER FOR USE AND OCCUPANCY THEREOF COVERING THE PERIOD FROM NOVEMBER 5, 1934, THE DATE OF ACQUISITION OF TITLE TO THE PROPERTY, TO THE DATE OF VACATION.

THE CUSTODIAN WIRED THIS DIVISION UNDER DATE OF JANUARY 31, 1935, THAT POSSESSION OF THE SITE AND BUILDING LOCATED THEREON WAS SURRENDERED TO HIM ON SAID DATE.

THE CUSTODIAN HAS ALSO REPORTED THAT THE SWARTHMORE NATIONAL BANK AND TRUST COMPANY COLLECTED THE SUM OF $100.84 FROM THE FORMER TENANT FOR USE AND OCCUPANCY OF THE PREMISES COVERING THE PERIOD FROM NOVEMBER 5 TO DECEMBER 31, 1934, WHICH IS AT THE RATE APPROXIMATELY 5 PERCENT PER ANNUM OF THE PURCHASE PRICE PRORATED MONTHLY.

THE SOLICITOR FOR THE SWARTHMORE BANK AND TRUST COMPANY, MR. ALBERT N. GARRETT, HAS DECLINED ON BEHALF OF THE BANK TO MAKE PAYMENT TO THE GOVERNMENT OF THE AMOUNT WHICH WAS PAID TO SAID BANK BY THE FORMER TENANT, BUT HAS MADE A COMPROMISE OFFER, THE AMOUNT OF $46.84 IN SETTLEMENT OF THE GOVERNMENT'S CLAIM ON THE BASIS OF $100.84 LESS A CREDIT OF $54.00 FOR CERTAIN TAXES ON THE PROPERTY FOR THE YEAR 1934.

THE CONSTRUCTION ENGINEER NOW IN CHARGE OF THIS PROJECT HAS FORWARDED TO THIS DEPARTMENT A LETTER ADDRESSED TO HIM BY THE SOLICITOR FOR THE BANK UNDER DATE OF MAY 16, 1935, AGAIN OFFERING TO PAY THE UNITED STATES THE SUM OF $46.84 IN FULL SETTLEMENT OF ALL CLAIMS FOR RENTAL DUE FROM THE VENDOR FOR USE AND OCCUPANCY OF THE PREMISES.

THIS DEPARTMENT IS NOT DISPOSED TO ACCEPT THE AFORESAID AMOUNT, INASMUCH AS IT IS LESS THAN ONE-HALF OF THE SUM DUE, NAMELY, $100.84.

PHOTOSTATIC COPIES OF ALL CORRESPONDENCE PERTINENT TO THE CASE ARE HEREWITH INCLOSED. IT WILL BE APPRECIATED IF YOU WILL ENDEAVOR BY CORRESPONDENCE TO COLLECT FROM THE VENDOR THE AMOUNT OF RENTAL WHICH WAS PAID TO IT FOR USE AND OCCUPANCY OF THE PREMISES SUBSEQUENT TO NOVEMBER 5, 1934.

IN THE EVENT SETTLEMENT OF THIS CLAIM IS NOT MADE BY YOUR OFFICE, THIS DEPARTMENT SHOULD BE SO INFORMED IN ORDER THAT THE MATTER MAY BE REFERRED TO THE ATTORNEY GENERAL OF THE UNITED STATES WITH THE REQUEST THAT APPROPRIATE LEGAL PROCEEDINGS BE INSTITUTED LOOKING TOWARD THE PAYMENT TO THE GOVERNMENT OF THE AFORESAID RENTAL AS CONTEMPLATED BY LETTER OF FEBRUARY 7, 1931, FROM THE ATTORNEY GENERAL AND ADDRESSED TO THE VARIOUS DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT.

THE CONSTRUCTION ENGINEER (CUSTODIAN OF THE SITE) HAS COLLECTED FROM THE FORMER TENANT THE RENTAL DUE FOR USE AND OCCUPANCY OF THE PREMISES COVERING THE PERIOD FROM JANUARY 1, TO JANUARY 31, 1935, ON WHICH DATE HE VACATED.

A COPY HEREOF HAS BEEN FORWARDED TO THE CONSTRUCTION ENGINEER FOR HIS FILE.

IT APPEARS THE BANK BASES ITS OBJECTIONS TO REFUNDING THE RENTAL ON THE FACT THAT WHILE THE DECLARATION OF TAKING WAS FILED ON NOVEMBER 5, 1934, COMPLICATIONS AROSE RESULTING IN THE FILING OF A CONSENT DECREE ON FEBRUARY 15, 1935, WHICH IT IS STATED, WAS UNDERSTOOD BY ALL PARTIES CONCERNED AS BEING THE DATE OF SETTLEMENT. IN LETTER OF APRIL 8, 1935, FROM THE UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF PENNSYLVANIA, IT IS STATED THAT THE TRANSFER OF THE PROPERTY WAS EFFECTED AMICABLY AFTER CERTAIN TECHNICAL OBSTACLES WERE OVERCOME, AND THAT IT WAS HIS OPINION THAT THE MATTER SHOULD BE CONSIDERED CLOSED WITHOUT PRESSING THE CLAIM FOR RENT.

OBVIOUSLY TITLE TO THE PROPERTY PASSED TO THE GOVERNMENT ON THE FILING OF THE DECLARATION OF TAKING AND THE RIGHT TO ALL RENTALS ACCRUING THEREAFTER IS IN THE GOVERNMENT. ACT OF FEBRUARY 26, 1931, 46 STAT. 1421.

THERE IS NOTHING IN THE CONSENT DECREE DIVESTING THE GOVERNMENT OF THIS TITLE AND NEITHER THE OPINION OF THE UNITED STATES ATTORNEY NOR OF THE SOLICITOR OF THE BANK AS TO THE RIGHTS OF THE PARTIES UNDER THE DECREE WOULD CHANGE ITS EFFECT NOR DIVEST THE GOVERNMENT OF ITS RIGHTS IN THIS RESPECT. IT IS NOT APPARENT WHY THE PROPER GOVERNMENT OFFICIAL DID NOT COLLECT THE RENT CURRENTLY FROM THE TENANT INSTEAD OF PERMITTING THE FORMER OWNER TO CONTINUE TO COLLECT IT.

THE FULL AMOUNT OF RENT ACCRUING AFTER NOVEMBER 5, 1934, AND COLLECTED BY THE BANK IS FOR PAYMENT TO THE GOVERNMENT. NEITHER MAY A LESS AMOUNT BE ACCEPTED AS A COMPROMISE NOR BECAUSE THE BANK MADE PAYMENT OF ANY AMOUNT ON ACCOUNT OF THE TAXES ALLEGED TO HAVE ACCRUED AFTER NOVEMBER 5, 1934. NO SUCH TAX LIABILITY CHARGEABLE TO THE GOVERNMENT COULD ARISE AGAINST THIS PROPERTY AND ANY PAYMENT THEREOF MAY NOT BE USED AS A SET-OFF AGAINST RENTS COLLECTED FOR THIS PERIOD. ACCORDINGLY, SETTLEMENT WILL ISSUE IN FAVOR OF THE UNITED STATES IN THE SUM OF $100.84 AND COLLECTION THEREOF WILL BE PROCEEDED WITH IN THE USUAL MANNER.